Citation Nr: 0730203
Decision Date: 09/25/07 Archive Date: 10/01/07
DOCKET NO. 02-13 177 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUES
1. Entitlement to service connection for diabetes mellitus,
type II.
2. Entitlement to service connection for post-traumatic
stress disorder (PTSD).
3. Entitlement to rating in excess of 10 percent prior to
July 11, 2000, and to a rating in excess of 40 percent
thereafter, for chronic lumbar strain.
4. Entitlement to an effective date prior to July 11, 2000,
for the grant of a 40 percent evaluation for chronic lumbar
strain.
5. Entitlement to an increased evaluation for history of
cervical strain with compression of C5-C6, degenerative joint
disease, currently evaluated as 10 percent disabling.
6. Entitlement to Dependents' Educational Assistance
benefits.
REPRESENTATION
Appellant represented by: Robert P. Walsh, Attorney at
Law
WITNESSES AT HEARING ON APPEAL
The veteran and spouse
ATTORNEY FOR THE BOARD
Robert E. P. Jones, Counsel
INTRODUCTION
The veteran served on active duty from February 1970 to
December 1972 and from September 1974 to November 1991.
This case comes before the Board of Veterans' Appeals (Board)
on appeal from March 2002 and September 2003 rating decisions
of the Detroit, Michigan, Department of Veterans Affairs (VA)
Regional Office (RO). In the March 2002 rating decision, the
RO did the following: (1) denied service connection for PTSD;
(2) granted a 40 percent evaluation for chronic lumbar
strain, effective, July 11, 2000; (3) continued the 10
percent evaluation for history of cervical strain with
compression of C5-C6, degenerative joint disease and (4)
denied entitlement to dependents' educational assistance
benefits. In the September 2003 rating decision, the RO
denied service connection for diabetes mellitus, type II, and
denied reopening the claim for service connection for
bilateral hearing loss disability.
In August 2004, the veteran and his spouse testified at a
personal hearing before the undersigned Veterans Law Judge.
A transcript of that hearing has been associated with the
claims file.
In a decision dated in July 2005, the Board denied the
veteran's claims for service connection for diabetes mellitus
and hearing loss, and denied the veteran's claim for an
effective date prior to July 11, 2000 for the grant of a 40
percent evaluation for chronic lumbar strain. The July 2005
decision remanded the veteran's other claims. The veteran
appealed the Board's decision to the United States Court of
Appeals for Veterans Claims (Court). In February 2007, the
Court issued an order which granted a February 2007 joint
motion of the parties for partial remand of the Board's July
2005 decision. The joint motion vacated and remanded the
Board denials of the veteran's claim for service connection
for diabetes, and his claim for an effective date prior to
July 11, 2000 for the grant of a 40 percent evaluation for
chronic lumbar strain. The appeal regarding the hearing loss
claim was dismissed by the Court. A copy of the motion and
the Court's Order have been incorporated into the claims
folder.
Based on the instructions of the February 2007 joint motion,
the veteran's claim for an increased rating for his chronic
lumbar strain disability has been recharacterized as
entitlement to rating in excess of 10 percent prior to July
11, 2000, and to a rating in excess of 40 percent thereafter.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
The joint motion states that the medical records of the
private physician who wrote an October 2003 statement
indicating that the veteran has diabetes mellitus, must be
discussed. The Board notes that no attempt has been made to
obtain these pertinent medical records and that such records
should be requested from the private physician. The Board
further notes that there is conflicting information as to
whether or not the veteran currently has diabetes mellitus.
The veteran should be provided a VA medical examination to
determine if he currently has diabetes mellitus.
The July 2005 Board decision remanded the veteran's claim for
service connection for PTSD in order that an attempt to
verify the veteran's claimed in-service stressor could be
made. The July 2005 decision also remanded the veteran's
claims for an increased rating for a lumbar spine disability
and his claim for an increased rating for a cervical spine
disability in order that the veteran could be provided a VA
orthopedic examination to determine the current severity of
these disabilities. The record does not indicate that
verification of the veteran's claimed stressor has been made,
or that the veteran has been afforded a new VA orthopedic
examination. These actions must be accomplished prior to
Board review of these claims.
The veteran's claim for an effective date prior to July 11,
2000 for the grant of a 40 percent rating for chronic lumbar
strain is inextricably intertwined with the veteran's claim
for an increased rating for chronic lumbar strain prior to
July 11, 2000. Accordingly, the veteran's effective date
claim must be remanded to the RO for consideration of the
increased rating claim prior to review by the Board.
The claim for entitlement to Dependents' Educational
Assistance will be held in abeyance due to remanding of the
claims for increased ratings.
Accordingly, the case is REMANDED for the following action:
1. With respect to the claims for
increased evaluations and the claim for
entitlement to Dependents' Educational
Assistance, send an appropriate letter to
the veteran to ensure compliance with all
notice and assistance requirements set
forth in the VCAA and its implementing
regulations. This letter should advise the
veteran of the evidence necessary to
substantiate his claims, as well as what
evidence he is to provide and what
evidence VA will attempt to obtain. In the
letter, the veteran should also be told to
provide any evidence in his possession
that pertains to his claims.
2. After obtaining the necessary
authorization from the veteran, contact
William L. Phillips, D. O., 1700 Oak
Avenue, Suite 400, Muskegon, MI, 49442,
and request copies of all of his medical
records related to treatment of the
veteran for diabetes mellitus.
3. Contact the United States Army and
Joint Services Records Research Center
(JSRRC) and ask them to provide any
available information which might
corroborate the veteran's alleged in-
service stressor. His units of assignment
as reflected on his DA 20 should be
provided. He claims the following
stressor: In May 1972, he stated he heard
a crash and saw thick black smoke and that
all the soldiers aboard this flight died,
including a friend of his.
4. Schedule the veteran for an
appropriate VA examination for the purpose
of determining whether he has diabetes
mellitus. In addressing this question,
all indicated tests should be performed
and all findings should be reported in
detail. In determining whether the
veteran has diabetes, the examiner should
also comment on the glucose test findings
which are of record, to specifically
include the April 2002 glucose test.
5. Make arrangements with the appropriate
VA medical facility for the veteran to be
afforded an orthopedic examination, and,
if necessary, a neurological examination
to show the current severity of his
service-connected cervical and lumbar
spine disorders. All indicated tests,
including range of motion studies and x-
rays, should be performed and all findings
must be reported in detail. Send the
claims folder to the examiner for review.
Ask the examiner to address the following:
A. List all manifestations of the
veteran's service-connected cervical
strain and lumbosacral strain. The
orthopedic examiner should report range of
motion of the spine in degrees. The
orthopedic examiner should express an
opinion as to the severity of any
orthopedic manifestations (i.e. decreased
range of motion) of the veteran's cervical
spine and lumbar spine disorders. The
orthopedic examiner should fully describe
any pain, weakened movement, excess
fatigability, and incoordination present
in the cervical spine and the lumbar
spine. If feasible, these determinations,
if applicable, should be expressed in
terms of the degree of additional range of
motion loss due to any pain, weakened
movement, excess fatigability, or
incoordination. If the examiner feels
that such determinations are not feasible,
this should be stated in the examination
report together with the reasons why it
was not feasible. The examiner should
also provide an opinion as to whether pain
could significantly limit functional
ability during flare-ups or when the
cervical spine or lumbar spine is used
repeatedly over a period of time. This
determination should, if feasible, be
portrayed in terms of the degree of
additional range of motion loss due to
pain on use or during flare-ups. If the
examiner feels that such determinations
are not feasible, this should be stated
for the record together with the reasons
why it was not feasible.
B. State whether the veteran has
intervertebral disc disease is due to the
service-connected lumbosacral strain. If
he does, the examiner should address the
following:
1. Specifically list all orthopedic
and neurologic signs and symptoms which
are due to the veteran's disc disease.
2. State whether each neurological and
orthopedic sign and/or symptom found
are constant or near constant.
3. Describe the severity of each
neurological and orthopedic sign and
symptom.
4. State whether the medical evidence
shows that the veteran has
incapacitating episodes (i.e., a period
of acute signs and symptoms due to
intervertebral disc syndrome that
requires bed rest prescribed by a
physician and treatment by a
physician). If so, what is the total
duration of such incapacitating
episodes during the past 12 months?
6. After the above actions have been
accomplished, the RO should re-adjudicate
the veteran's claims. If any benefit
sought on appeal is not granted to the
veteran's satisfaction, or if a timely
notice of disagreement is received with
respect to any other matter, the RO should
issue a supplemental statement of the case
for all issues in appellate status and
inform the veteran of any issue with
respect to which further action is required
to perfect an appeal.
The appellant has the right to submit additional evidence and
argument on the matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006).
______________________________________________
K. Osborne
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2006).